Why a unanimous decision in voting districting case?

One of the potentially most important cases of the U.S. Supreme Court term, Evenwel v. Abbott, was decided April 4, and it did nothing to change the way in which voting districting is done in the United States. The court reaffirmed that state and local governments may draw election districts on the basis of total population. Most surprisingly, the result was unanimous, 8-0, in an opinion by Justice Ruth Bader Ginsburg. Why the unanimity?

Prior to the 1960s, many state legislatures were badly malapportioned with districts of vastly different populations. As cities and suburbs grew in population, election districts were not redrawn to reflect this. There might be one district where 50,000 people elected a representative and another district for the same legislative body where 250,000 people elected a representative. Those in the latter district were obviously disadvantaged and had less influence in electing a representative. The same malapportionment was evident in congressional districts in states across the country.

In the early 1960s, the Supreme Court held that such malapportionment denies equal protection of the law and announced the principle "one person, one vote." This means that for any legislative body all districts must be about the same in population size.

Chief Justice Earl Warren said that of all the decisions in his tenure on the Supreme Court, the cases ensuring proper apportionment were the most important. This was an area where the political process never would correct itself. Legislators who benefited from the malapportionment were not going to voluntarily redraw election districts to remove themselves from office. The Supreme Court's decisions enhanced democracy. State legislatures were more reflective of the populations of their states. Reapportionment tended to favor the urban areas that had grown in population and the newly constituted legislatures were more likely to deal with the needs of these constituents.

Challengers in Evenwel v. Abbott argued that districting should be based on the number of eligible voters, not the total population. They contended that every voter should have equal influence in the political process. At the oral arguments last December some of the justices - especially Justice Samuel Alito - seemed sympathetic to this view. Justice Anthony Kennedy, in his questions, pushed the idea of drawing districts based on both population and eligible voters.

But the court unanimously held that districting based on population is constitutional and even left open the question of whether it would be permissible to draw districts based on eligible voters. This was surprising because in Burns v. Reed (1966), the court held that districting based on eligible voters was constitutional, though obviously not required.

So why the unanimity? First, there would be a significant practical problem with requiring that districting be based on the number of eligible voters: There is no way to know this. The census provides a count of the population, but there is no similar mechanism that measures the number of eligible voters. As the court noted, a contrary holding would have changed election districts in all 50 states.

Second, the Constitution is clear that districts for the U.S. House of Representatives must be drawn based on population. Section two of the 14th Amendment says "Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed." In order to rule for the challengers and hold that districting had to be based on eligible voters, the court would have had to explain why it was constitutionally forbidden for state and local districts to be drawn on the same basis that is constitutionally required for congressional districts.

Third, if the court had ruled for the challengers, there would be a significant adverse effect on representation of minority communities. Hispanic communities, with significant numbers of non-citizens, would lose representation. Felony convictions generally mean a loss of voting rights and this has a disproportionate effect on minority communities. Overall if the challengers won and districting had to be based on eligible voters, the political power of cities would decrease, while suburban and rural areas would gain. This likely would not have been enough to persuade the most conservative justices on the court, but made it very unlikely that the more liberal justices would side with the challengers.

Finally, and perhaps most importantly, ruling for the challengers would have required a major change in the political theory underlying the election system.

Most of all, the court's decision is based on a basic principle of democracy: Everyone - adults and children, voters and non-voters, citizens and non-citizens -- deserves representation. Justice Ginsburg powerfully made this point: "As the Framers of the Constitution and the 14th Amendment comprehended, representatives serve all residents, not just those eligible or registered to vote. Nonvoters have an important stake in many policy debates - children, their parents, even their grandparents, for example, have a stake in a strong public-education system - and in receiving constituent services, such as help navigating public-benefits bureaucracies. By ensuring that each representative is subject to requests and suggestions from the same number of constituents, total-population apportionment promotes equitable and effective representation."

Thus, the court's unanimous decision in Evenwel v. Abbott should be no surprise. But that makes it no less important in reaffirming basic principles of American democracy and upholding how election districts are drawn throughout the country.